The main legal point established in the judgment is that the applicability of Order II Rule 2 of the Code of Civil Procedure, 1908 depends on the identity of causes of action between the previous suit and the subsequent suit, and the entitlement of the plaintiff to more than one relief.

JUDGMENT

Debangsu Basak, J. - Two applications have been taken up for analogous hearing as they concern the same parties.

2. The defendant No. 2 has applied for dismissal of CS No. 250 of 2015 by way of Old GA No. 4020 of 2015 in CS No. 250 of 2015. The defendant No. 2 has applied for dismissal of an application under Clause 13 of the Letters Patent, 1865, filed by the plaintiffs, being ALP No. 4 of 2018 by way of IA GA No. 2 of 2021 in ALP No. 4 of 2018.

3. Learned Senior Advocate appearing for the defendant No. 2 has submitted that, the instant suit relates to dated May 16, 2012 and April 10, 2013 entered into between the plaintiffs and the defendant No. 1. The defendant No.1 instituted Title Suit No. 192 of 2014 in the Court by the learned Civil Judge (Senior Division) Second Court Barasat seeking specific performance of the agreement dated April 10, 2013. The plaintiffs had instituted Money Suit No. 101 of 2015 which was before the learned Civil Judge senior division Second Court at Barasat. The two suits had since been transferred to the Commercial Court.

4. Learned Senior Advocate appearing for the defendant Nos. 1 and 2 has submitted that, the subject matter of the instant suit relates to an immovable property. He has referred to the pleadings of Money Suit No. 101 of 2015. He has submitted that, the plaintiffs could have sought the same relief as has been sought in the present suit, in the Money Suit. He has pointed out that, although the plaint of Money Suit 101 of 2015 had contained a prayer for leave under Order II Rule 2 of the Code of Civil Procedure, 1908, the plaintiffs did not obtain such leave at the time of institution of the Money Suit No. 101 of 2015. In fact, subsequent to the present application, the plaintiffs had applied in Money Suit No. 101 of 2015 for leave under Order II Rule 2 of the Code of Civil Procedure, 1908. He has contended that, the plea taken in the application for grant of leave under Order II Rule 2 of the Code of Civil Procedure, 1908 in Money Suit No. 101 of 2015 is specious. He has contended that in any event, the fact that, the plaintiffs did not obtained leave under Order II Rule 2 of the Code of Civil Procedure, 1908 is now established. In any event, Money Suit No. 101 of 2015 being prior to the institution of the instant suit and the plaintiffs not having obtained leave under Order II Rule 2 of Code of Civil Procedure, 1908, the present suit is not maintainable. He has contended that, the cause of action forming the basis of money suit No. 101 of 2015 is also the basis for the present suit.

5. Learned Senior Advocate appearing for the plaintiffs has contended that, the subject matter of the instant suit is different from the previous money suit. He has contended that, the parties to the two suits are different. In the money suit, the plaintiffs have claimed recovery of money from the defendants therein. In the present suit, the plaintiffs have claimed reliefs with regard to the two agreements entered into between the parties. He has submitted that, the defendant No. 3 is the assignee of an immovable property. The plaintiffs having faced difficulties with regard to such immovable property and the financial accommodation enjoyed from financial institution, the plaintiffs had entered into an agreement with the defendant Nos. 1 and 2 whereby and whereunder, the defendant Nos. 1 and 2 agreed to bail out the plaintiffs from such financial difficulties on certain considerations. Not only did the defendant Nos. 1 and 2 renegade on such promises, the defendants 1 and 2 arranged the affairs of the defendant No. 3 in such manner so as to wrest control of the defendant No. 3 from out of the plaintiffs. The instant suit is in relation to the management and control of the defendant No. 3 which the defendants 1 and 2 have wrongfully taken over from the plaintiffs.

6. Learned Senior Advocate appearing for the plaintiffs has relied upon ( Alka Gupta v. Narender Kumar Gupta, (2010) 10 SCC 141 ) and